land lease agreement (lla) for 100-150 mw power project at ... - BPDB

Land Lease Agreement(c)(d)(e)(f)(g)Any arbitral proceeding under this Section 9.4 shall be conducted in Dhaka, Bangladesh;provided, that if the Company desires that the arbitration be conducted outside ofBangladesh, the arbitration shall be carried out at the seat of the Singapore InternationalArbitration Centre in the Republic of Singapore and the Company shall pay all of BPDB’scosts of the arbitration, as and when incurred by BPDB, including the out of pocket costsof the arbitration of BPDB in excess of the costs that would have been otherwise incurredby BPDB had the arbitration been conducted in Dhaka, Bangladesh (the “IncrementalCosts”). The arbitrator shall resolve any Disputes as to whether a cost would have beenincurred in connection with the arbitration in Dhaka, Bangladesh or are IncrementalCosts. The arbitrator may order that BPDB bear its own Incremental Costs in part or infull if he finds that BPDB’s claim or defence in the arbitration was spurious and withoutany merit whatsoever, and BPDB shall pay the amount ordered; provided, however, thatif a matter in Dispute involves a sum of ten million Dollars (US$ 10,000,000) or more, orthe legality, validity or enforceability of this Lease Agreement, or the termination of thisLease Agreement, the arbitration shall, unless otherwise agreed by the Parties, beconducted in Singapore, and, in such case, each Party shall pay its own costs ofarbitration as and when incurred, unless such costs are ordered by the arbitrator to bepaid by one Party, in which case they shall be paid by such Party.The Parties agree that the arbitral tribunal constituted in pursuance of a request forarbitration made under Sections 9.4(a) or (b), shall consist of a sole arbitrator who shallbe a person who has held judicial office for a period of not less than three (3) years in acourt of record in England or in a jurisdiction whose laws are substantially derived fromthe common law of England. The Parties further agree that, except in the case of anappointment made by the Chairman of the Administrative Council pursuant to Article 38of the Convention and Rule 4(1) of the ICSID Rules, any person appointed as solearbitrator need not be a person designated to serve on the Panel of Arbitratorsconstituted under Section 4 of Chapter I of the Convention.No arbitrator appointed pursuant to this Section 9.4 shall be a national or resident of thejurisdiction of either Party or of any shareholder or group of shareholders owning directlyor indirectly five percent (5%) or more of the Ordinary Share Capital, nor shall any sucharbitrator be an employee or agent or former employee or agent of or have any materialinterest in the business of or in any Party or any such person.Subject (in the case of arbitral proceedings under Section 9.4(a)) to the provision ofSection 5 of Chapter IV of the Convention and Chapter VII of the ICSID Rules, eachParty hereby irrevocably undertakes (i) to treat any arbitral award or procedural ordermade by the arbitral tribunal constituted pursuant to this Section 9.4 as final and bindingand (ii) undertakes to comply with and to carry out any such arbitral award or proceduralorder, fully and without delay.Without prejudice to the provisions of Article 47 of the Convention and Rule 39 of ICSIDRules (in the case of any arbitral proceeding begun in pursuance of Section 9.4(a)), theParties agree that the arbitral tribunal may, upon the application of either Party, order aParty or the Parties to take such interim measure or measures of protection as thearbitral tribunal may consider necessary with respect to the subject matter of the Disputeor any ancillary claim referred to it, the maintenance or efficient conduct of the arbitrationor the preservation of the rights and interests of any Party under or with respect to thisLease Agreement and the arbitration agreements set forth in this Section 9.4, including,without limitation, the making of an order requiring any Party to refrain from filing orpursuing or to terminate or withdraw any action, suit or proceeding in any court ofcompetent jurisdiction or, to the extent not prohibited by law, other authority which has(directly or indirectly) a connection with the subject matter of the arbitral proceeding orjurisdiction relating to such subject matter, and the Parties agree to abide by and complywith such order(s).29